Defense: Murder defendant had 'ineffective assistance of counsel'

Antwan Peppers listens in Shawnee County District Court during a hearing to decide whether he received ineffective assistance of counsel during his murder trial in 2008. Peppers is serving a "Hard 50" life sentence after he was convicted of pre-meditated first-degree murder in 2008.

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When the attorney representing Antwan T. Peppers chose to not pursue an alibi defense, that was a reasonable trial strategy, and Peppers shouldn't receive a second trial in the killing of one man and wounding of a second, the Shawnee County District Attorney's Office contends.

Peppers says he received ineffective assistance of counsel during his 2008 jury trial.

Peppers' jury trial was so prejudiced by the legal performance of Wendell Betts, his defense attorney, that Peppers didn't receive a fair trial, Gerald Wells, his appellate attorney, told a Shawnee County District Court judge in a court brief filed April 8.

The convictions of Peppers for murder and attempted murder, as well as his sentences totaling more than 72 years, should be reversed, and Peppers should receive a retrial, Wells wrote.

Assistant district attorney Jodi Litfin wrote the 21-page brief opposing retrial of Peppers for the district attorney's office.

During an evidentiary hearing in mid-February, Peppers, 42, said he didn’t have anything to do with the shootings.

Peppers testified he was at a south-central Topeka house with a cousin, Dante Peppers, and two women, then later was at the Last Call, a club in Lawrence, on the night of July 15, 2006, when the victims were shot outside Terry's Bar & Grill, 522 S.W. 6th.

Dante Peppers also testified he was with Antwan Peppers in Topeka and later in Lawrence.

During the evidentiary hearing, Betts testified he told Peppers it wasn't in Peppers' best interest for the defendant to claim an alibi defense nor to testify in front of the jury.

Betts testified it was Peppers' choice whether to testify and Peppers chose to not testify.

Betts and two other defense attorneys testified they spent a "substantial amount of time and resources" investigating the alibi and trying to contact Dante Peppers.

Defense attorneys eventually contacted Dante Peppers and told Antwan Peppers they talked to him, but the cousin's alibi information was "very scarce and lacked sufficient detail," and jurors would find testimony of Antwan Peppers and Dante Peppers "suspect," Litfin wrote.

Peppers is serving a “Hard 50” sentence for premeditated first-degree murder in the slaying of Jermaine E. Cunningham, 20, and a consecutive sentence of 22 years and eight months for attempted first-degree murder in the shooting of Terrell Dontae Hayes-Osby. The two were shot at 12:08 a.m. July 15, 2006.

Wells noted Wendell Betts, Antwan Peppers’ trial attorney, "deliberately withheld information from Mr. Peppers, not on a minor matter, but information that could and did alter Mr. Peppers' defense."

The information was the existence of records of phone calls between Antwan Peppers and Dawn Diggins, Peppers' then-girlfriend, on the night of the shootings.

But Betts testified Diggins said Peppers called her on the night of the shootings to ask her to pick him up near S.W. 10th and Washburn.

He then asked her to drive on S.W. 6th past Terry's Bar & Grill to look at something, Betts said. On the way to the bar, Diggins and Peppers passed ambulances driving away from Terry's, Betts said.

If sworn in as a witness, Diggins said she wouldn't lie, Betts testified, and she would have been credible.